Supreme Court abortion ruling prompts HHS privacy guidance, training grants

Regulators remind physicians they are bound by federal privacy rules, but cell phones and apps are not.

The U.S. Department of Health and Human Services (HHS) has published guidance for physicians and patients to protect patient privacy in the changing legal environment of abortion rights.

Meanwhile, new grants worth $3 million will supplement training for Title X family planning clinics around the nation. HHS Secretary Xavier Becerra also held a conference call this week with the governors of Michigan, Oregon and Maine to discuss ramifications of the June 24 U.S. Supreme Court decision in the case Dobbs v Jackson Women’s Health Organization, which overturned the 1973 Roe v Wade landmark case legalizing abortion.

Protecting privacy

HHS cited recent reports that patients are concerned that period trackers and other health information apps on smartphones may threaten their right to privacy by disclosing geolocation data that may be misused by those seeking to deny care.

“How you access health care should not make you a target for discrimination. HHS stands with patients and providers in protecting HIPAA privacy rights and reproductive health care information,” HHS Secretary Xavier Becerra said in a news release. Anyone who believes their privacy rights have been violated can file a complaint with the HHS Office of Civil Rights (OCR) and privacy violations will be an enforcement priority, Becerra said.

He called the action part of his commitment to President Joe Biden to protect access to health care, including abortion care and other forms of sexual and reproductive health care.

Generally the guidance does two things dealing with protected health information (PHI)

HIPAA

HHS is reminding medical care providers about the circumstances under which the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule permits disclosure of PHI without a patient’s authorization.

Disclosures for purposes not related to health care, such as disclosures to law enforcement officials, are permitted only in narrow circumstances tailored to protect the individual’s privacy and support their access to health care, including abortion care, according to HHS.

Mobile devices

OCR issued information for patients about protecting the privacy and security of their health information when using their personal cell phone or tablet. In most cases, the HIPAA Privacy, Security, and Breach Notification Rules do not protect the privacy or security of individuals’ health information when they access or store the information on personal cell phones or tablets, according to HHS.

The guidance explains how to turn off the location services on Apple and Android devices, and identifies best practices for selecting apps, browsers, and search engines that support increased privacy and security.

Additional training

HHS’ Office of Population Affairs announced two one-time supplemental awards. The Reproductive Health National Training Center will receive $2 million to support Title X grantee staff and the National Clinical Training Center for Family Planning will receive $750,000 to support Title X clinical service providers.

“The awards will help Title X grantees increase training and technical assistance to address the challenges that the recent Supreme Court decision may have on their Title X Family planning service delivery,” the HHS announcement said.

For more than 50 years, Title X family planning clinics have offered family planning and preventive health services for more than 190 million low-income or uninsured individuals, including breast and cervical cancer screening, contraceptive counseling and care, and STI/HIV testing. Title X services are delivered through a network of clinics including state and local health departments, federally qualified health centers, hospital-based sites, and other private nonprofit and community-based health centers, according to HHS.

The money is available through the American Rescue Plan Act.

Governors speak out

Becerra held a conference call with Michigan Gov. Gretchen Whitmer, Oregon Gov. Kate Brown, and Maine Gov. Janet Mills and said, “We will go to the outer limits to make sure we provide the care people need,” according to the call readout.

The states had different labels for abortion access, according to the Center for Reproductive Rights (CRR).

Oregon was classified an “expanded access” state, meaning the right to abortion is protected by state statutes or state constitutions, and other laws and policies have created additional access to abortion care. Maine is a “protected” state, meaning the right to abortion is protected by state law with limitations on access to care.

Michigan is considered a “hostile” state, meaning lawmakers have expressed a desire to prohibit abortion entirely, according to CRR. The center tallied 21 states in the “hostile” category and, since the Dobbs decision, five where abortion is illegal: Alabama, Arkansas, Missouri, Oklahoma and South Dakota.